Citation Nr: 0009384
Decision Date: 04/07/00 Archive Date: 04/12/00
DOCKET NO. 98-15 528 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to a rating in excess of 50 percent for post-
traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Associate Counsel
INTRODUCTION
The veteran had active military service from June 1967 to
March 1970.
This matter comes before the Board of Veterans' Appeals
(Board) from a January 1998 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Detroit,
Michigan. The veteran presented testimony from that RO at a
video conference hearing held before the undersigned, seated
in Washington, DC, in March 2000. Additional evidence was
submitted later in March 2000, consisting of the report of a
September 1999 VA examination previously considered and the
report of a March 2000 psychological evaluation of the
veteran by Ahvay Muhammad, Ph.D., for which a waiver of
initial RO consideration was attached.
The Board notes that the veteran, at a May 1997 VA
examination, raised the issue of entitlement to service
connection for shell fragment wounds of the abdomen. This
matter is therefore referred to the RO for appropriate
consideration.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The veteran is demonstrably unable to obtain or retain
gainful employment as a result of his PTSD.
CONCLUSION OF LAW
The criteria for a 100 percent evaluation for PTSD have been
met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R.
§ 4.132, Diagnostic Code 9411 (1996); 38 C.F.R. § 4.7 (1999);
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the veteran's claim is well
grounded within the meaning of 38 U.S.C.A. § 5107(a).
Further, the Board is satisfied that all relevant facts have
been properly developed and that no further assistance to the
veteran is required to comply with 38 U.S.C.A. § 5107(a).
Factual background
Briefly, as was noted in the Introduction, the veteran's
service ended in March 1970. In January 1998, service
connection for PTSD was granted, for which the veteran was
assigned a 30 percent evaluation for the period from August
23, 1996, to April 13, 1997, a 100 percent evaluation for
April 14, 1997, to July 31, 1997, and a 30 percent evaluation
for the period from August 1, 1997. In November 1999, the RO
increased the rating assigned the veteran's PTSD to 50
percent disabling for the period from August 23, 1996, to
April 13, 1997, and for the period from August 1, 1997.
These evaluations have remained in effect since that time.
VA treatment records for 1993 to August 1999 disclose
treatment for various psychiatric complaints, including
nightmares, flashbacks, auditory hallucinations, sleep
difficulties, intrusive thoughts, depression, anxiety
attacks, memory impairment, hypervigilance, an exaggerated
startle reflex, irritability, the inability to trust others
and anhedonia. The veteran reported living with relatives
and indicated that he was last employed around 1992. The
treatment records document several psychiatric
hospitalizations of the veteran, and indicate that the
veteran attended several inpatient PTSD psychotherapy groups;
his PTSD symptoms appeared to improve following these
sessions. On mental status evaluation, the veteran was alert
and oriented and well groomed, with no evidence of psychosis
or organicity and no evidence of suicidal or homicidal
ideation. His affect ranged from full to anxious and
constricted, and his mood ranged from appropriate to anxious
and irritable. His speech was described as fluent and
coherent, and his insight and judgment were considered fair.
The treatment reports document that the veteran was
considered unemployable, and the veteran was assigned Global
Assessment of Functioning (GAF) scores ranging from 40 to 60.
The veteran was afforded a VA examination in December 1993,
at which time he reported a recent history of depression as
well as treatment for several physical disabilities. He also
reported a history of alcohol abuse, although he indicated
that he no longer indulged in more than an occasional beer.
On mental status examination the veteran appeared somewhat
depressed.
On file is the report of a May 1996 psychiatric evaluation of
the veteran, which was completed for the Michigan Department
of Social Services. The veteran reported experiencing PTSD
symptoms as well as depression and anxiety attacks. On
mental status examination the veteran presented as lucid, but
with a depressed mood. His memory was described as
essentially unimpaired, but he exhibited slight to moderate
difficulties with concentration. He also exhibited slight to
moderate difficulty with social interaction and with his
ability to adapt. The veteran was diagnosed with depressive
disorder not otherwise specified, and with rule out panic
disorder.
On VA examination in December 1996, the veteran complained of
sleep difficulties and flashbacks. He denied experiencing
auditory hallucinations. The veteran indicated that he lived
with relatives and reported that he was last employed in
approximately 1990. On mental status examination, the
veteran appeared intoxicated and his clothing was considered
barely appropriate, although his personal hygiene was
described as fair. The veteran was diagnosed with acute
intoxication, possible secondary to medication, and was
assigned a GAF score of 40. The examiner concluded that
there was little clinical support for a diagnosis of PTSD due
to the veteran's intoxicated state.
On VA examination in May 1997, the veteran reported that he
had been unemployed for several years. He complained of
current symptoms including flashbacks and depression, and he
reported that he avoided people and tended to stay home. On
mental status examination the veteran was oriented and
presented as casually dressed with adequate hygiene. His
speech was slurred, but was adequate and fluent. His affect
was described as flat or dysphoric. No abnormalities in
thought productivity were identified, and his thought
associations were coherent and goal directed. He exhibited
no irrational or psychotic thought content. The presence of
some impairment of cognitive functioning was noted on
examination. The veteran was diagnosed with substance
induced mood disorder and with PTSD by history. The examiner
concluded that the veteran's PTSD was not the primary cause
of his current impairment, and assigned the veteran a GAF
score of 50.
On file is the report of an October 1998 psychiatric
evaluation of the veteran performed for the State of
Michigan. On mental status examination the veteran presented
as oriented, coherent and logical. His general fund of
information was considered average, but his memory was
described as moderately impaired. He exhibited markedly
limited concentration and moderate to marked impairment in
adaptability. He was considered capable of functional levels
of concept formation. The veteran reported experiencing
emotional numbness and complained of irritability. His
social life was considered severely restricted. Severe PTSD
with chronic depression was diagnosed. The veteran was
assigned GAF scores ranging from 44 to 45.
On file is a July 1999 statement by a VA physician which
indicates, in essence, that the veteran continued to exhibit
psychiatric symptoms, including depression, confusion, severe
memory impairment, sleep problems, nightmares, verbal
explosiveness and difficulty in structuring any consistent
daytime activities. The veteran reportedly continued to
attend psychotherapy on an irregular basis, but the examiner
concluded that the veteran was unemployable in any capacity
and totally disabled occupationally; the examiner indicated
that this situation was permanent in nature. The veteran was
diagnosed with severe PTSD with depression, and assigned a
GAF score of 34.
The veteran was afforded a hearing before a hearing officer
at the RO in September 1999, at which time he testified that
had been unemployed for several years; he averred that he had
stopped working secondary to his PTSD symptoms. He reported
experiencing flashbacks, sleep difficulties, memory
impairment and confusion, an exaggerated startle reflex,
anger outbursts, feelings of worthlessness and a lack of
interest in activities. He also reported experiencing panic
attacks, primarily when in public. He testified that he
tended to avoid people, that he had no friends, and that he
did not associate with family members.
The veteran was afforded a VA examination in September 1999,
at which time he complained of nightmares, flashbacks, sleep
problems, depression, hypervigilance, hyperarousal symptoms,
an exaggerated startle reflex and interpersonal problems. He
reported that he was unemployed and that he lived with a
relative. He reported that he tended to isolate himself, and
that he usually remained home, except when he attended
therapy groups. On mental status examination the veteran
presented as alert, oriented and casually dressed. His
affect and mood were described as anxious and his speech was
tremulous. He denied experiencing any hallucinations, and he
exhibited no formal thought disorder. He reported thinking
of suicide frequently, but denied any current plan or intent.
He exhibited some memory impairment, but displayed reasonable
insight. The veteran was diagnosed with severe PTSD and
assigned a GAF score of 38. The examiner concluded that the
veteran was unemployable due to his PTSD.
Of record is the report of a November 1999 examination of the
veteran by a VA social worker. The author noted that the
veteran was last employed in 1990 and that he reported
maintaining little contact with his family members. He
complained of auditory hallucinations and admitted that he
had recently used alcohol. He stated that he slept no more
than two hours each night, and he complained of poor
concentration and an inability to structure his day. He also
reported that he was verbally explosive. On evaluation, the
veteran's hygiene and grooming were described as fair. His
affect was appropriate and his mood was anxious.
At his March 2000 hearing before the undersigned, the veteran
essentially contended that the evidence on file supported his
claim.
On file is the report of a March 2000 psychological
evaluation of the veteran by Ahvay Muhammad, Ph.D. The
veteran at that time reported that he had held numerous jobs
in the past. His present complaints included depression,
sleep disturbances, anger outbursts, suicidal ideation,
significant memory impairment, nightmares, flashbacks,
intrusive thoughts, panic attacks, anhedonia, hyperarousal
symptoms and an exaggerated startle reflex. On mental status
examination, the veteran's affect was described as flat and
his mood as depressed. His abstract reasoning and memory
were described as severely impaired. His speech was
circumstantial and tangential, and he exhibited frequent
thought derailment and blocking. The veteran was diagnosed
with severe PTSD and with panic disorder, and was assigned a
GAF score of 22.
Analysis
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (1999). The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999).
Where there is a question as to which of two evaluations
should be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1999).
The Board notes that effective November 7, 1996, VA revised
the criteria for diagnosing and evaluating psychiatric
disabilities. 61 Fed. Reg. 52695 (1996). On and after that
date, all diagnoses of mental disorders for VA purposes must
conform to the fourth edition of the Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV). 61 Fed.
Reg. 52700 (1996) (codified at 38 C.F.R. § 4.125). The new
criteria for evaluating service-connected psychiatric
disability are codified at 38 C.F.R. § 4.130 (1999). In
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), the
United States Court of Appeals for Veterans Claims (Court)
held that where the law or regulation changes after a claim
has been filed or reopened but before the administrative or
judicial appeal process has been concluded, the version most
favorable to the appellant applies unless Congress provided
otherwise or permitted the Secretary of Veterans Affairs to
do otherwise and the Secretary did so.
In the present case, the Board notes that the RO evaluated
the veteran's claim under the previous regulations and under
the new schedular criteria in making its rating decision of
January 1998. The August 1998 Statement of the Case and
subsequent supplemental statements of the case also reflect
consideration of the veteran's claim under the new schedular
criteria.
Previous PTSD Rating Criteria.
The field of mental disorders represents the greatest
possible variety of etiology, chronicity and disabling
effects. 38 C.F.R. § 4.125 (1996). The severity of
disability is based upon actual symptomatology, as it affects
social and industrial adaptability. 38 C.F.R. § 4.130
(1996). In evaluating impairment resulting from the ratable
psychiatric disorders, social inadaptability is to be
evaluated only as it affects industrial adaptability based on
all of the evidence of record. 38 C.F.R. § 4.129 (1996).
PTSD warrants a 50 percent rating when the ability to
establish or maintain effective or favorable relationships
with people is considerably impaired; and where, by reason of
psychoneurotic symptoms, the reliability, flexibility and
efficiency levels are so reduced as to result in considerable
industrial impairment. A 70 percent rating is warranted when
the ability to establish and maintain effective or favorable
relationships with people is severely impaired. In such
cases, the psychoneurotic symptoms are of such severity and
persistence that there is severe impairment in the ability to
obtain or retain employment. A 100 percent schedular
evaluation is warranted when the attitudes of all contacts,
except the most intimate, are so adversely affected as to
result in virtual isolation in the community; there are
totally incapacitating psychoneurotic symptoms bordering on
gross repudiation of reality with disturbed thought or
behavioral processes associated with almost all daily
activities such as fantasy, confusion, panic, and explosions
of aggressive energy resulting in a profound retreat from
mature behavior; or there is a demonstrable inability to
obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic
Code 9411 (1996). The Board notes that each of the three
criteria for a 100 percent rating under Diagnostic Code 9411
is an independent basis for granting a 100 percent rating.
See Johnson v. Brown, 7 Vet. App. 95 (1994).
Review of the evidence of record discloses that the veteran
has not worked since approximately 1990, and that his work
history prior to 1990 apparently was somewhat erratic.
Although the veteran has several physical disabilities which
impact on his employability, the evidence on file clearly
shows that symptoms associated with his PTSD currently
interfere with his ability to obtain or maintain employment.
VA treatment records have demonstrated the presence of
significant and persistent PTSD symptomatology, and indicate
that he is considered unemployable, and his treating
physician in July 1999 and the VA examiner in September 1999
both concluded that the veteran is unemployable on a
permanent basis due to his PTSD, assigning GAF scores
consistent with this evaluation. These conclusions are
additionally supported by Dr. Muhammad's March 2000
evaluation of the veteran.
In view of the documented severity and persistence of the
veteran's PTSD symptomatology, as well as his history of
unemployment and the opinions of the July 1999 treating
physician and the September 1999 VA examiner, the Board is
satisfied that the veteran's PTSD has rendered him
demonstrably unable to obtain or retain employment.
Accordingly, the Board concludes that a 100 percent
disability rating for the veteran's service-connected PTSD is
warranted. Since the Board concludes that a 100 percent
evaluation is warranted under the old criteria, it is not
necessary to evaluate the veteran under the new rating
criteria.
ORDER
Subject to the controlling regulations applicable to the
payment of monetary benefits, a 100 percent evaluation for
PTSD is granted.
SHANE A. DURKIN
Member, Board of Veterans' Appeals